Blog Topic

Whistleblowers face legal challenges
Posted by: David Blanchard
December 28, 2010

Doing the right thing often takes a clear conscience. For employees, it also takes a tremendous sense of courage and some fundamental understanding of the law. When you find out that your employer or the company that you're working for is doing something legally unsound or ethically dubious, you may find yourself in a difficult situation. That inner moral guide may tell you to report what you know: a crime, a fraud, some irregularity or violation of practice, but you may be afraid of retaliation or discrimination or fired by your employer for doing the right thing.

There are many state and federal laws that help employees to overcome this fear and protect them from possible retaliation for being a whistleblower. In cases of government fraud, the False Claims Act allows an individual to sue on behalf of the federal government. This 147-year-old law was enacted during the Civil War time to prevent armament profiteering. It has become, in recent years, prosecutors and whistleblowers' most useful weapon in fighting crimes and frauds committed by government contractors.

Example: West Point grad John Kopchinsky, became a Pfizer sales rep when he left the Army. When he found out that Pfizer fraudulently promoted the usage of Bextra, a painkiller, far beyond that which was approved by the FDA, he complained to management. But his complaint was ignored. And as his concerns grew, the "ethical line kept moving" in the wrong direction. By the time he was talking with lawyers about evidences he had gathered on the company's promotion of Bextra in 2003, he was already fired by Pfizer. Because of Kopchinsky's good conscience, upstanding courage, and sound legal representation, Bextra was withdrawn from the market in 2005, and Kopchinski will be awarded $51.5 million of the money recovered by the feds for his help. Furthermore, he'll also get a share of the money being returned to various states.

Kopchinsky's case represents an ever growing trend in the legal world of fraud fighting and prevention. Public Citizen, a consumer group, reports that financial penalties against drug companies under the federal False Claims Act including fines and settlements since 1991 totaled $19.8 billion. And most of that money (about three-quarters) was paid by drug companies over the past five years. So it is clear that documented pharma fraud has been accelerating.

One of the reasons for this huge increase in reported pharma fraud is the parallel increase in the number of industry insiders emboldened to make public dirty industry secrets. Public Citizen reports that whistleblower cases made up only 9% of pharma payouts to the government in the 1990s, but 67% in the past decade. They now do so with the promise of a share in the penalties.

Despite the soaring penalties, whistleblowers are still in a legally fragile situation because whistleblower cases often involve very complex set of facts and employment history. In retaliation, the company/employer may claim other work related pretext as justification for discrimination or firing. Our whistleblower lawyers at Nacht Law can provide you with expert legal advice, as well as legal representation to cut through an employer's excuses and wrongdoings.  Proper representation and advice makes it easier for you to do the right thing and avoid the dangers associated with being the one to blow the whistle.

Permalink

Hostile Work Environment
Posted by: David Nacht
December 24, 2010

There is a concept in the employment world called hostile work environment. The concept in law is different from the one in most people's heads. Many people who have a boss that yells or creates a high stress working environment are victims of a hostile work environment in the literal sense, but that kind of environment is not necessarily illegal. To have a boss that yells or makes employees cry is not an uncommon phenomenon in the United States, and the law does not prevent it--except when the motivation is discriminatory. A hostile work environment, in the legal sense, is a workplace made hostile because of a person's gender, race, and/or disability.

Sexually hostile work environment cases are by far the most common. These cases typically involve women who are repeatedly subjugated to offensive conduct of a sexual nature. Instances of repeated touching, exposure to pornography, being asked out on dates, and the like will usually constitute a sexually hostile work environment. It is uncommon for a single incident to be considered a hostile work environment under the law, but a single case of aggressive physical assault can constitute a hostile work environment.

Racially hostile work environments typically must be rather extreme for the courts to provide relief. In the case of African-Americans, we're talking about the repeated use of the N-word or conduct involving references to slavery. In the case of Arab-Americans, we're talking about the repeated use of derogatory terms referring to national origin. The key here is that the conduct should be considered pervasive, and that the victim is being reasonable when he or she takes offense.

Under Michigan law, if the offender is a coworker or a boss, the employee must notify the company through a sexual harassment hotline, make a complaint through a human resources department, or contact the owner to give the company a chance to resolve the problem. Often, just mentioning it to a co-worker of even a supervisor is not considered sufficient notice for the company to be held responsible for fixing the situation. Our firm advises clients how to make a complaint in a way that protects their rights and stops the conduct, while carefully considering the impact on their careers.

Cases of a non-sexual, gender-based hostile work environment or disability-based hostile work environment are very rare in the courts, but they occur more often than is commonly recognized. A boss who picks on a person with a disability in a pervasive manner or who regularly demeans women but not men might be vulnerable to a law suit. Our law firm provides guidance in handling such situations.

Moreover, while the doctrine of bullying has recently taken on prominence regarding kids in school and on the internet, the law still doesn't protect people from bullying in the workplace as a general rule. Truly extreme behavior fits within another category, "intentional infliction of emotional distress," but the courts are very careful in limiting the cases being brought under that doctrine to extreme situations.

We counsel people in many different settings who are under pressure, unsure of their legal options, and how it will all impact their careers. You don't have to suffer alone; come in for a consultation.

Permalink

Criminal charges present special dangers for public school employees
Posted by: David Blanchard
December 22, 2010

For any professional, the prospect of a criminal charge, even a simple misdemeanor, can present serious threat to a job and a career.  For teachers and public school employees, 2005 Michigan "School Safety" legislation (2005 PA 129-131 and 138) presents a special danger for future employment.  Although it has been effective since January 1, 2006, many criminal defense lawyers and even judges are unaware of the special reporting requirements for teachers charged with a crime.  As a result, minor violations of the law can too often become major employment issues with far reaching and devastating employment consequences. In order to protect the rights of their clients, competent criminal defense lawyers need to know the law and advise their clients to avoid the traps. For those facing arraignment on a criminal charge, even before most defendants secure counsel, proper notice of their obligations from the district court judge may be all that stands between them and the unemployment line.

Example: a public school teacher is charged with a felony or one of many enumerated misdemeanors --   felony obstruction of an officer is a common arraignment charge -- maybe based on "mouthing off" or simply on a refusal to take a breathalyzer. His criminal defense lawyer believing this offense can easily be dismissed later allows the client to be arraigned on the charge and a week later negotiates a dismissal of the charge in exchange for a non-criminal "civil infraction" or some other minor offense.  All is well, right? Not so fast.  If the arraignment is not reported within three days, the public school teacher is in violation of the School Safety Act and subject to summary dismissal.  Unfortunately, many school districts are taking a hard line "no excuses" approach on enforcement of the act.

Among other things, the School Safety Act imposes two reporting requirements: it requires school employees to self-report to both the employing district and the Michigan Department of Education (MDE) (1) when they have been arraigned and (2) when they have been convicted of a felony certain enumerated misdemeanors. The self-reporting must be done within 3 business days.  For arraignment, any felony charge must be reported and the same goes for a number of misdemeanor offences, including among other offences, breaking and entering, larceny, assault, assault and battery, drug manufacturing or delivery,  child abuse (in any degree), and any sex crime listed in the sex offender registry act (such as criminal sexual conduct, indecent exposure, assault with intent to commit csc, or any number of similar ordinance violations). Michigan has developed disclosure forms for teachers arraigned or convicted on criminal charges, but they are rarely if ever made available at the place and time of arraignment.

Upon conviction the law requires mandatory disclosure to the court and even requires prosecutors to notify school districts directly.  However, the most dangerous time for many teachers is arraignment, where representation is the exception and magistrates or judges are crunched for time. In order to ensure protection of teacher rights, it is crucial that criminal court judges and criminal defense lawyers are aware of, and can advise on, the self-reporting obligations. This is because if the employee fails to report the charge or conviction, then the school district may discharge the person from employment and terminate his contract. Moreover, the failure to self-report may render the employee guilty of an additional crime: if the non-reported charge or conviction is a felony or listed (sex crime) offense, then the criminal defendant may be guilty of a felony; and if the non-reported charge is any other enumerated misdemeanor, then failure to disclose is another misdemeanor in itself.

It is essential that judges and lawyers are aware and able to advise on the special legal requirements for teachers, so all employees working for a school district may avoid serious threats to their job based only on a a lack of information about legal obligations.  At Nacht Law, we are proud of our ability to provide sound legal advice to teachers, paraprofessionals and other school employees, and solid criminal AND employment representation to avoid these pitfalls. 

Permalink

How to Achieve Good Results Without Filing a Lawsuit
Posted by: Jennifer Salvatore
December 15, 2010

$930,000 Settlement Latest Pre-Suit Victory for Salvatore

The conventional wisdom is that you litigate the big cases with good facts.  While that is generally true, it's often a mistake to forgo attempts at pre-suit mediation in such cases.  In virtually every case I plan to litigate, I reach out to the other side prior to suit and explore settlement, often with surprisingly good results.   In particularly sensitive cases - sex harassment, for example, where even a successful lawsuit more often than not re-victimizes my clients - I will push for early mediation, before a complaint is ever filed.

I was reminded again of the wisdom of this approach with a recent case, which settled for close to a million dollars after pre-suit mediation. There, my clients were able to have an opportunity to be heard by their employer on extremely sensitive issues in a setting that was safe, non-confrontational, and confidential.  The mediation process resulted in a number of significant non-monetary policy changes that were important to my clients, as well as a sizable monetary settlement, all achieved within 60 days of my clients walking in my door.  Most importantly, my clients felt that their experience with the legal system and with their employer was a positive one that respected their dignity and valued their losses. They and their employer are moving on with their employment relationship without the significant distraction and damage of a multi-year discrimination suit.  It was truly the best outcome for everyone involved.

Last year, I settled a $450,000 sex harassment suit against Central Michigan University in a similar fashion.  My clients were young women who played soccer at CMU.  The soccer coach there engaged in inappropriate contact with them, and left his job following their allegations.  CMU wanted to do the right thing for the students and families involved, and a public sex harassment lawsuit - in which the University would have legal defenses that would have been hurtful and damaging to the young women involved and where my clients would lose their privacy and open their lives up to public scrutiny - was not the right approach for anyone.  Rather than filing a complaint and sending it to the newspaper, I approached the University first and suggested mediation.   The mediation process itself not only resolved the legal claims in a timely fashion that allowed my clients to continue their college careers, but, again, my clients walked away with a significant monetary settlement and commitments to policy changes at CMU that would help protect other young women from predatory conduct by coaches.

These examples, of course, are the success stories. Not every case can or will be settled early; often litigation is the only means available to achieve justice for our clients.  But in my view too often lawyers don't explore as carefully as they should whether a lawsuit is necessary in the first place. And in every case I view my job as not just maximizing the financial result for my client, but as respecting my clients' overall goals, careers, privacy and dignity.  Of course, when those goals can be accomplished along with a million dollar settlement, that's a good day by anyone's measure.

Permalink

Employers send out the "sick-day spies"
Posted by: David Blanchard
December 09, 2010

Most employees wouldn't be surprised to hear that an application for workers compensation or requesting a medical leave may result in a private investigator on your tail.  The employer's insurance company saves money if they can find evidence to suggest an employee is lying about their condition.  But up until now, common wisdom was that run of the mill "sick days" are your own, you can do what you want with them, right? Not necessarily so.  Especially when employee benefits are at stake, employers are increasingly calling in the "sick day spies" to check on employees, according to an article recently published by Bloomberg Businessweek. Whether this type of spying is legal or whether it violates employee privacy law is less than clear.  A federal court in Chicago has said that employers may be legally justified in their spying, but differences in Michigan state law could lead to a different result.   Any argument about employee privacy will likely depend on a balancing between strength of employer justification against the level of invasion of worker privacy. 

Permalink

Laws Provide Protection for Nursing Mothers
Posted by: Angela Walker
December 01, 2010

The health benefits of breastfeeding are widely recognized.  Nevertheless, there are many practical hurdles to overcome – especially for working mothers.  The American Academy of Pediatrics currently recommends that breastfeeding continue for at least 12 months, and thereafter for as long as mother and baby desire.  Also, the World Health Organization recommends continued breastfeeding up to 2 years of age or beyond.  Recent legal developments are making it easier for women to adhere to these guidelines.

Employers Required to Provide Lactation Breaks Due to Recent Amendments to FLSA

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (PPACA).  As part of the PPACA, the Fair Labor Standards Act (FLSA) (29 USC § 207) was amended to require employers to provide reasonable break time and private spaces for nursing mothers to express breast milk during the workday for up to one year after a child’s birth.

Under this new FLSA provision, employers must provide employees with enough time to express breast milk each time they need to do so – whether or not the timing is convenient from the employer’s perspective.  There are no specific limitations on the number, frequency, or duration of the breaks.  Nevertheless, employers are not required to compensate employees for time spent expressing breast milk.  Also, the Department of Labor has issued guidelines stating that only employees who are not exempt from FLSA’s overtime pay requirements are entitled to lactation breaks under FLSA.

In addition to break time for covered employees, employers must also provide a private place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and customers for women to express breast milk.  According to the Department of Labor’s guidelines, if the space is not exclusively dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.

The law applies to employers of all sizes.  However, employers with less than 50 employees are not required to provide lactation breaks if they can show that doing so would pose an “undue hardship” by causing “significant difficulty or expense” when considered in relation to the size, financial resources, nature, and structure of the business.  Employers with over 50 employees have no such defense.  

It is too soon to tell how this provision will be enforced by the courts.  Because these cases do not involve lost wages, it will be difficult to measure damages for those women who are denied lactation breaks.  Even so, employees who are denied reasonable break time or private spaces for pumping can go to court to obtain injunctive relief, and they would be protected from retaliation for enforcing their rights under FLSA.  Also, prevailing plaintiffs under FLSA have the right to recover attorney’s fees.  

City of Ann Arbor Prohibits Discrimination Against Nursing Mothers

In early 2006, the Ann Arbor City Council passed a revision to the Ann Arbor City Code that gives nursing mothers the right to breastfeed in public in the City of Ann Arbor.  This law was passed in response to press coverage over an incident in December, 2005 where an Ann Arbor woman, Kelly Fuks, was told to stop breastfeeding her 6-month-old daughter at the local YMCA.

The City Code now provides that “No person shall prohibit a breastfeeding mother from or segregate a breastfeeding mother within any public accommodation where she and the child would otherwise be authorized to be.”  Persons who are found to have violated this provision can be fined up to $500.00 per day.  Also, any woman who is denied the right to breastfeed in a place of public accommodation has the right to bring a civil action against the person (or persons) who violated her rights.  The City Code explicitly provides for the recovery of attorney’s fees, in addition to damages and injunctive relief.

Proposed Legislation Would Provide Similar Protection under ELCRA

Under Michigan law, municipalities are prohibited from criminalizing breastfeeding as a form of public nudity.  In spite of this, there is no state law that prohibits discrimination against nursing mothers.  The state legislature is considering a bill that could change this.

On October 14 2009, State Representative Rebekah Warren introduced House Bill 5515 which would amend the Elliott-Larsen Civil Rights Act to provide protection for nursing mothers.  The proposed law would make it illegal to ask a woman to stop breastfeeding her infant in a place of public accommodation.  In addition, it would make it illegal to deny equal enjoyment of goods and services to a woman because she was breastfeeding a child.

The bill passed the House Judiciary Committee on December 2, 2009, but it has not yet come up for a vote in the House.  

Continue Reading